GARLAND GREEN v. STATE OF ARKANSAS
No. CR-12-887
SUPREME COURT OF ARKANSAS
Opinion Delivered June 19, 2014
2014 Ark. 284
PRO SE APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CR-08-4448], HONORABLE JOHN B. PLEGGE, JUDGE
PER CURIAM
In 2010, appellant Garland Green was found guilty in a trial to the bench of attempted capital murder, possession of a firearm by a felon, and first-degree battery. He was sentenced to an aggregate term of 120 mоnths’ imprisonment. The Arkansas Court of Appeals affirmed. Green v. State, 2011 Ark. App. 700.
Appellant subsequently filed in the trial court a timely, verified pro se petition for postconviction relief pursuant to
We first note that the transcript of the
This court hаs held that it will reverse the circuit court‘s decision granting or denying postconviction relief only when that decision is clearly erroneous. Hayes v. State, 2014 Ark. 104, ___ S.W.3d ___. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Johnson v. State, 2014 Ark. 74; Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694.
In his petition, appellant contended that his trial counsel was ineffеctive in several ways. On appeal, he reiterates some of the claims of ineffective assistance of counsel contained in the petition, and it is those allegations that are the bases for thе points for reversal in this appeal. All other allegations of ineffective assistance of counsel and any other arguments made below
When considering an appeal from a trial court‘s denial of a
The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errоrs so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). A court must indulge in a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance. Harrison v. State, 2012 Ark. 198, 404 S.W.3d 830.
Second, the petitioner must show that counsel‘s deficient performance so prejudiced petitioner‘s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. A рetitioner making an ineffective-assistance-of-counsel claim must show that his counsel‘s performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that there is a reasonable
To understand the points raised in appellant‘s brief, a recitation of the facts of the case is helpful. In 2008, appellant and Rufus Worsham engaged in a physical altercation at a motorcycle club. A witness testified that, after the fight, Worsham ran outside to his truck but could not get in it because it was locked. Appellant followed him and shot him several times. Another witness testified that she had seen a gun in Worsham‘s waistband before the fight, that she witnessed the fight, that she saw Worsham run to his truck followed by appellant, and that Worsham moved in what she believed was а threatening manner toward appellant, which caused appellant to begin firing the gun at Worsham. Another witness also testified that Worsham had been armed with a gun when the fight began. There was also testimony that severаl bullets struck Worsham while he was near his truck and that he ran away and attempted to hide, but appellant drove around the neighborhood until he found Worsham and shot him again.
Appellant argues on appeal that there were obvious signs of tampering with physical evidence and “false swearing” by witnesses in the рolice report. Appellant‘s
Appellant next argues on appeal that counsel erred in failing to secure the testimony of witnesses who could have given evidence favorable to the defense, including six alibi witnesses and an “expert witness” who could have testified on forensic evidence regarding the trajectory of the bullets and the crime scenes whеre Worsham had been shot. The claim, as set out in the petition and in appellant‘s brief, does not establish ineffective assistance of counsel under the Strickland standard because appellant has largely fаiled to state specifically what the witnesses’
With respect to those witnesses that appellant did name in his petition as being favorable defense witnesses who were not called, appellant offered no statement of compelling evidence that any of the persons could have provided testimony to countermand the evidence against appellant when that evidence is considered in its totality. Appellant further alleged that counsel had statements made by Worsham and a man who witnessed the fight that were inconsistent and that counsel failed to properly interview either man to prepare impeachment material for when they testified at his trial. The claims were not enough to overcome the presumption that counsel was effective under the Strickland standard because appellant offered no factual basis from which it could be determined that the allegedly inconsistent statements were admissible at his trial. Accordingly, he has failed to meet his burden under the first prong of Strickland in that he has not demonstrated that counsel‘s performance fell below an objective standard of reasonableness. Nor has appellant met the second prong under Strickland because he has failed to demonstrate that he was prejudiced by defense counsel‘s failure to interview a particular witness or to secure the witness‘s testimony at trial. Appellant must do more than allege prejudice; he must demonstrate it with facts. Stiggers v. State, 2014 Ark. 184, ___ S.W.3d ___ (citing Walton v. State, 2013 Ark. 254 (per curiam)).
On appeal, appellant relies to some degree on the general claim that there was a failure on trial counsel‘s part to conduct an adequate pretrial investigation. To warrant postconviction
Having considered the arguments raised by appellant in this appeal, the record, and the order rendered by the trial court, there are no grounds on which to reverse the trial court‘s ruling. Accordingly, the order is affirmed.
Affirmed.
Garland Green, pro se appellant.
Dustin McDaniel, Att’y Gen., by: LeaAnn J. Adams, Ass‘t Att‘y Gen., for appellee.